Transgender campaigners are being given too great a say over expanding hate crime laws at the expense of the wider public’s views, a top judge has said. Charles Wide, a former senior Old Bailey judge, said the plans drawn up by the Law Commission for the Government relied too much on a “narrow” range of campaign groups espousing “contentious and controversial” sociological theories. He singled out LGBTQIA+ campaign group Stonewall, saying the Commission was treating them more like ‘a consultant than consultee’.
In a pamphlet for the think tank Policy Exchange reported by The Telegraph, Judge Wide said that the views of other groups and members of the public who challenged such questionable theories – often in the face of a vitriolic backlash – had been ignored.
He singled out the apparent influence of Stonewall on the Commission in the controversial debate over claims that gender is a social construct rather than determined by birth alone.
“[The Commission’s consultation] draws unnecessarily and extensively on contentious and controversial sociological theories, with scant critical evaluation, seemingly unaware of how contentious these theories are. There is a lack of balance,” said Judge Wide.
“No adequate thought seems to have been given to the difficulty of reaching beyond a limited range of academics and organisations to the full variety of academic voices, organisations, commentators, and members of the public who have no organisation to speak for them.
“It is indicative that the controversial campaigning organisation Stonewall seems to have been treated more like a consultant than consultee. Views which contest what are presented as orthodoxies were neither sought nor expressed.
“People and organisations, ignored thus far, might reasonably lack confidence in the Commission’s impartiality and receptiveness to contrary opinions,” said Judge Wide.
The Government is considering expanding hate crimes and the Commission is consulting on issues including misogyny, age, sex workers, homelessness, alternative subcultures and philosophical beliefs. The Commission has already backed down over one proposal that could have classed offensive dinner table comments made in private as hate crimes.
“No adequate thought seems to have been given to the difficulty of reaching beyond a limited range of academics and organisations to the full variety of academic voices, organisations, commentators, and members of the public who have no organisation to speak for them.”
Judge Wide said he was also concerned over the impact on free speech because of the failure to consult people who feared being accused of a hate crime if they challenged current orthodoxies on gender and other subjects.
“Rightly, the interests of those who might be protected are considered in detail but little attention has been paid to those who might suffer (or fear suffering) the consequences of laws being too widely drawn or misused,” he said.
“The consultation paper displays almost no awareness of an elephant in the room, affecting both the substance of the subject and the conduct of the consultation: the apprehension, even fear, which results in self-censorship.
“It is a constant feature of many people’s (to coin a phrase) lived experience – those who dare not speak freely for fear that they may be putting their careers at risk, extinguishing their chances of advancement, or even risking dismissal. For many, the fear of the Twitter storm or a visit by the police, as the result of a politically or personally motivated complaint, is enough to silence them.”
He feared the Law Commission had strayed beyond its non-political brief and that the Government may be using it as “long grass” or cover for difficult political decisions which should be the sole responsibility of democratically-accountable politicians.
“It should be a matter of real concern if the Law Commission is morphing, at least in part, into an engine of social change, pursuing agendas of its own formulation, having a privileged position close to the heart of government,” he said.
He feared the Law Commission had strayed beyond its non-political brief and that the Government may be using it as “long grass” or cover for difficult political decisions which should be the sole responsibility of democratically-accountable politicians.
“There are signs the Commission has moved in this direction. In this consultation, it has strayed from its non-political status in ways for which it is unsuited, exploring complex, contested sociological material in order to formulate policy in a highly-charged, sensitive area of intense political controversy.”
A Law Commission spokesman told The Telegraph: “The Commission has consulted extremely widely, talking to organisations and individuals with a broad range of views. We have received over 2500 responses to the hate crime consultation demonstrating that it has been thorough, open and fair. We are carefully considering these responses which will inform the recommendations that we make in our final report later this year.
“Hate Crime is a complex and sensitive area of the law and, while the Commission can recommend options for legal reform, it will ultimately be for Government and Parliament to decide which of these recommendations to implement.
“The Law Commission can only undertake projects following a request from a Government Minister. It has no powers to implement changes it recommends.”
"Views which contest what are presented as orthodoxies were neither sought nor expressed." This is why the LGB Alliance is so important. A respectable charitable organisation with a mandate to speak on behalf of lesbian, gay and bisexual people will be able to challenge the orthodoxy, when individuals and smaller action groups are more easily ignored and silenced.